By registering for an account at SendingPros with your email address you are agreeing to the Terms of Service and all other clauses listed here forth. If you do not wish to accept these terms you can simply deactivate your account and not continue using it.
The Effective Date of this Services Agreement is the date at which you sign up for an account through our online form.
RECITALS
WHEREAS, SendingPros operates hardware and software for hosting marketing websites, and has substantial knowledge, experience and expertise in management and maintenance of websites
WHEREAS, Client desires to engage SendingPros, and SendingPros desires to be engaged by Client to provide such services subject to the terms and conditions set forth below
WHEREAS, the parties acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, SendingPros can make no guarantee that any given reader shall be able to access SendingPros' server at any given time.
SendingPros represents that it shall make every good faith effort to ensure that its server is available as widely as possible and with as little service interruption as possible.
NOW, THEREFORE, for and in consideration of the mutual covenants and agreements contained herein, Client and SendingPros agree as follows:
SendingPros SERVICES
SendingPros will provide the Services in accordance with the Agreement and all laws applicable to SendingPros. SendingPros' obligation to provide Services is contingent on verification that you at all times satisfy SendingPros' credit approval criteria. SendingPros shall have no obligation to provide Services for Customer Configurations which do not meet the SendingPros Configuration Requirements. SendingPros will provide support only to those individuals designated in the Control Panel and is not required to provide any support directly to your end users.
Delivery & Filtering. SendingPros will use commercially reasonable efforts to deliver your email messages to your ESP/SMTP accounts, but SendingPros does not guarantee delivery. Third party filtering services and other policies of recipient email services may prevent successful delivery of your messages. While the SendingPros Service does provide some email filtering services designed to filter spam it does not provide virus scanning and SendingPros recommends that you employ additional security measures to protect against spam, email phishing attempts and email infected with viruses. You acknowledge that the limitations of the filtering service will likely result in the capture of some legitimate email and the failure to capture some unwanted email, including email infected with viruses. SendingPros is not responsible for any damages arising from the failure of the SendingPros Service’s filtering services to filter unwanted email or from the capture of legitimate email, or from a failure of your email to reach its intended recipient.
TERMINATION
SendingPros shall have the right to terminate this Terms of Service with an immediate effect in writing to the Client if any of the following events occur.
– Client fails to make any payment when it becomes due,
– Client is in breach of any of its obligations under this Agreement,
– A liquidator is appointed over the Client or any of its assets,
– Client enters or proposes to enter into any arrangements with its creditors, including voluntary arrangements
– Client passes a resolution for winding up (other than for the purpose of reconstruction), or a court makes an order to that effect.
This contract may be terminated by either party, without cause, at any time, by giving the other party 14 days written notice. SendingPros will accept termination by electronic mail. Any rights to terminate this Agreement shall be without prejudice to any other accrued rights.
FINANCIAL ARRANGEMENTS
Client shall pay by valid payment method for Hos Services provided by SendingPros at the time of signing up at the fee set forth on the Host’s website. Client’s monthly payments for the Services, depending on the plan selected by Client, shall be automatically charged to the valid payment method provided by Client at the time of purchase each month.
If Client does not pay the fees by the Due Date, SendingPros may suspend Client’s ability to use the Services, and may terminate this Services Agreement.
1. Client agrees that all charges and fees associated with an account are their sole responsibility.
2. Billing will stop at end of term during which the service is cancelled.
3. At the end of the contract term, the contract will automatically renew for the original contract length indefinitely until cancelled in writing or via email.
4. Violations of SendingPros' Terms of Service may, at SendingPros' discretion, result in immediate and permanent disablement without refund.
5. Disputed charges (“chargebacks”) associated with any SendingPros account may, at SendingPros' discretion, result in immediate and permanent disablement. SendingPros expressly reserves the right to change the fees charged hereunder for the Services with advanced notice to the Client. If Client does not agree to any such pricing change, it may cancel the Services any time.
Suspension of Services. SendingPros may suspend the Services without liability if: (i) SendingPros reasonably believes that the Services are being used in violation of the Agreement; (ii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) there is an attack on the Services or your Services are accessed or manipulated by a third party without your consent, (iv) SendingPros is required by law or by a regulatory or government body to suspend the Services, or (v) there is another event for which SendingPros reasonably believes that the suspension of the Services is necessary to protect the SendingPros network or our other customers. You agree that if the Services are reinstated after a suspension for non-payment or for your breach of the Agreement (including the AUP), you will pay a reinstatement fee of $100.
TAXES
SendingPros shall not be liable for any taxes or other fees to be paid in accordance with or related to purchases made from Client or SendingPros' server. Client agrees to take full responsibility for all taxes and fees of any nature associated with such products sold.
MATERIAL PRODUCTS
1. Client will provide SendingPros with material and data in a condition that is “server-ready”, which is in a form requiring no additional manipulation on the part of SendingPros. SendingPros shall make no effort to validate this information for content, correctness or usability.
2. Use of SendingPros' service requires a certain level of knowledge in the use of Internet languages, protocols, and software. This level of knowledge varies depending on the anticipated use and desired content of Client’s Webspace by the Client.
3. Web Publishing and Email sending: requires knowledge of HTML, properly locating and linking documents, FTPing Webspace contents, Graphics, text, Sound, imagemapping, email marketing, etc.
4. SendingPros will exercise no control whatsoever over the content of the information passing through the network, provided that it adheres to all other conditions set forth below:
Client agrees to not use the Service to:
1. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
2. harm minors in any way;
3. impersonate any person or entity, including, but not limited to, a SendingPros official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
4. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
5. upload, post, email, transmit or otherwise make available any Content that Client does not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
6. upload, post, email, transmit or otherwise make available any Content that infringes any patent, trademark, trade secret, copyright or other intellectual or proprietary rights (“Rights”) of any party;
7. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising or promotional materials, except in those areas (such as shopping) that are designated for such purpose; in no event , however, is junk mail, spam, chain letters, pyramid or Ponzi schemes, or the like allowed;
8. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
9. disrupt the normal flow of dialogue, cause a screen to “scroll” faster than other users of the Service are able to type, or otherwise act in a manner that negatively affects other users’ ability to engage in real time exchanges;
10. interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
11. intentionally or unintentionally violate any applicable local, state, national or international law, any rules of any national or other securities exchange, and any regulations having the force of law;
12. provide material support or resources (or conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization(s) designated by the United States government as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act;
13. SendingPros reserves the right to police its network to verify compliance with all agreed upon Terms.
14. The Client agrees to cooperate in any reasonable investigations into their adherence to all agreed upon Terms. Failure to cooperate is grounds for immediate disablement of all accounts/service plans.
15. SendingPros reserves the right to disconnect any website or server deemed to present a security threat to SendingPros' customers, servers, or network.
16. The opening of multiple accounts or service plans in order to bypass any restrictions or overage charges set forth by SendingPros is grounds for termination of all services.
17. SendingPros makes no warranties or representations of any kind, whether expressed or implied for the service it is providing. SendingPros also disclaims any warranty of merchantability or fitness for a particular purpose and will not be responsible for any damages that may be suffered by the Client, including loss of data resulting from delays, non-deliveries or service interruptions by any cause or errors or omissions of the Client. Use of any information obtained by way of SendingPros is at the Client’s own risk, and SendingPros specifically denies any responsibility for the accuracy or quality of information obtained through its services. Connection speed represents the speed of a connection to and do not represent guarantees of available end to end bandwidth. SendingPros expressly limits its damages to the Client for any non-accessibility time or other down time to the pro-rata monthly charge during the system unavailability.
18. SendingPros specifically denies any responsibilities for any damages arising as a consequence of such unavailability. In the event that this material is not “Server-ready”, SendingPros may, at its option and at any time, reject this material, including but not limited to after it has been put on SendingPros' Server. SendingPros agrees to notify Client immediately of its refusal of the material and afford Client the opportunity to amend or modify the material to satisfy the needs and/or requirements of SendingPros. If the Client fails to modify the material, as directed by SendingPros, within a reasonable period of time, which shall be determined between the parties themselves, the contract shall be deemed to be terminated.
19. Certain aspects of the Services may be in beta form as designated by SendingPros (“Beta Services”). In addition to the disclaimers of warranty set out in this Agreement, the Beta Services are provided on an as-is basis with the express understanding that they may not have been tested, have faults, and may not be as secure as other elements of the Services. Any SLA, indemnity, representation or warranty that SendingPros provides herein does not apply to the Beta Services. SendingPros reserves the right to terminate the Beta Services at any time, even if Client has relied on them as a material inducement to enter into this Agreement. SendingPros makes no guarantee that Beta Services will be put into production.
TRADEMARKS & COPYRIGHTS
Client warrants that it has the right to use the trademarks and copyrights applicable to all content and/or products being made available through the client’s account.
INTELLECTUAL PROPERTY RIGHTS
Client shall obtain any and all necessary consents and clearances to enable you lawfully to make use of all and any intellectual property rights through the Services, including without limitation, clearance and/or consents in respect of Client’s proposed domain name or content on Client’s website.
HARDWARE, EQUIPMENT, & SOFTWARE
The client is responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access SendingPros. SendingPros makes no representations, warranties or assurances that the Customer’s equipment will be compatible with the SendingPros service.
LIMITED LIABILITY
Client expressly agrees that use of SendingPros' Server is at Client’s sole risk. Neither SendingPros, its employees, affiliates, agents, third party information providers, merchants, licensers or the like, warrant that SendingPros' service will not be interrupted or error free; nor do they make any warranty as to the results that may be obtained from the use of the Server service or as to the accuracy, reliability or content of any information service or merchandise contained in or provided through the SendingPros' service, unless otherwise expressly stated in this contract. Under no circumstances, including negligence, shall SendingPros, its offices, agents or anyone else involved in creating, producing or distributing SendingPros' service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the SendingPros service; or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation, or transmission or any failure of performance, whether or not limited to acts of God, communication failure, theft, destruction or unauthorized access to SendingPros' records, programs or services. Client hereby acknowledges that this paragraph shall apply to all content on SendingPros' service.
In any event no claim shall be brought unless Client has notified SendingPros of the claim within one year of its arising.
In no event shall SendingPros be liable to you for any loss of business, contracts, profits or anticipated savings or for any other indirect or consequential or economic loss whatsoever.
INDEMNIFICATION
Client agrees that it shall defend, indemnify, save and hold SendingPros harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorneys’ fees, (“Liabilities”) asserted against SendingPros, its agents, its clients, servants officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by Clients, its agents, employees or assigns. Client agrees to defend, indemnify and hold harmless SendingPros against Liabilities arising out of:
any injury to person or property caused by any products sold or otherwise distributed in connection with SendingPros' by Client;
any material supplied by Client infringing or allegedly infringing on the proprietary rights of a third party;
copyright infringement by Client;
any defective product which Client sold on SendingPros.
FILE SHARING APPLICATIONS
All accounts in SendingPros are strictly prohibited in publishing or distributing in anyway on links or files that are related to file that are provided through file sharing service. Whether lawful or unlawful, SendingPros reserves the right to determine what is harmful to its Clients, operations or reputation.
REVISIONS AND ERRATA
The materials appearing on SendingPros' web site could include technical, typographical, or photographic errors. SendingPros does not warrant that any of the materials on its web site are accurate, complete, or current. SendingPros may make changes to the materials contained on its web site at any time without notice. SendingPros does not, however, make any commitment to update the materials.
LINKS
SendingPros has not reviewed all of the sites or email hosting accounts linked to its Internet web site and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by SendingPros of the site. Use of any such linked web site is at the user’s own risk.
SITE TERMS OF USE MODIFICATIONS
SendingPros may revise these terms of service for its web site at any time without notice. By using this web site you are agreeing to be bound by the then current version of these Terms of Services. Except as expressly provided herein, this Agreement, including any other contracts incorporated by reference, may only be amended as agreed by the parties in a written amendment (including by a click-to-accept that is accepted by Client or Authorized User). The parties further agree that upgrades (e.g. moving up a service plan level), downgrades (e.g. moving down a service plan level), and additional services (e.g. adding account management services) may be agreed via electronic communication that is acknowledged by authorized representatives for both parties. If one party fails to exercise, or delays exercising, any right, remedy or power set out in this Agreement, this shall not operate as a waiver of that right, remedy or power, whether under this Agreement or at law or equity.
FORCE MAJEURE
Except for the payment of fees by Client, if the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, act of God or any other causes beyond the control of either party, that party shall be excused from such to the extent that it is prevented, hindered or delayed by such causes.
GOVERNING LAW
The Agreement is governed by the laws of the State of Florida, USA, exclusive of any choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America including the Federal Arbitration Act, 9 U.S.C. §1, et seq. Any dispute or claim relating to or arising out of the Agreement shall be submitted to binding arbitration. The arbitration shall be conducted in the state and county (or equivalent geographic location) of the non-asserting party’s principal business offices in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA") in effect at the time the dispute or claim arose. The arbitration shall be conducted by one arbitrator from AAA or a comparable arbitration service. The arbitrator shall issue a reasoned award with findings of fact and conclusions of law. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Agreement, or to enforce an arbitration award. Neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
Either party shall be permitted to appeal the final award under the AAA’s Optional Appellate Arbitration Rules in effect at the time the dispute or claim arose. Grounds for vacating the award shall include, in addition to those enumerated under the Federal Arbitration Act, that the arbitrator committed errors of law that are material and prejudicial. The appeal shall be determined upon the written documents submitted by the parties, with no oral argument. After the appellate rights described herein have been exercised or waived, the parties shall have no further right to challenge the award.
16.2 Notwithstanding the exclusive jurisdiction provision above, you agree that SendingPros may seek to enforce any judgment anywhere in the world where you may have assets. No claim may be brought as a class or collective action, nor may you assert such a claim as a member of a class or collective action that is brought by another claimant. Each of us agrees that SendingPros will not bring a claim under the Agreement more than two years after the time that the claim accrued. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
16.3 The prevailing party in any action or proceeding relating to this Agreement shall be entitled to recover reasonable legal fees and costs, including attorney’s fees.
CONTRACT REVISIONS
Revisions to this Contract will be applicable to previous Contracts Revisions will be considered agreed to by the Client on renewal of service as specified in Section – Financial Arrangements.
TRANSFER
Client may not transfer this contract without the written consent of SendingPros.
CONTRACT
These Terms of Service constitutes the entire Contract and understanding of the parties. Any changes or modifications to these Terms of Service of Contract thereto are agreed to by the both parties upon renewal of services.
Requirements for All SendingPros Campaigns
International Requirements By Country
These are either links to anti-spam legislation in countries outside the US or the name of the country’s anti-spam law.
Canada
Canada’s Anti-Spam Legislation (CASL) amends the Canadian Radio-television and Telecommunications Commission Act, the Competition Act, the Personal Information Protection and Electronic Documents Act and the Telecommunications Act. It is very similar to CAN-SPAM but has some minor differences and covers all electronic messages, not just email.
Australia
Spam Act 2003, Act No. 129 of 2003 as amended.
EU
Article 13 of DIRECTIVE 2002/58/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).
The EU body that addresses spam is The Contact Network of Spam Enforcement Authorities (CNSA).
The Directive is implemented by each member state independently so you will want to check with your particular country law for more details.
UK
The Privacy and Electronic Communications (EC Directive) Regulations
Austria
Belgium
Commission de la protection de la vie privée, Le spam en Belgique Etat des lieux en juillet 2003, July 4, 2003
China
Measures for Administration of E-Mail Service on Internet (2006)
( Unofficial English Translation )
Cyprus
Section 06 of the Regulation of Electronic Communications and Postal Services Law of 2004 (Law 12 (I) / 2004 deals with unsolicited communications (spam)
Czech Republic
Act No. 480/2004 Coll., on Certain Information Society Services
Estonia
Information Society Service Act
France
Falls under the Commission Nationale de l’Informatique et des Libertés (CNIL) [National Data Processing and Liberties Commission], Electronic Mailing and Data Protection (Oct. 14, 1999) (French) CNIL Guidelines on email marketing.
Germany
Art. 7 German Unfair Competition Law (Gesetz gegen Unlauteren Wettbewerb) (UWG)
Art. 202a, 263, 303a, 303b of the German Criminal Code Art. 6 of the German Law regarding Information Society Services Art. 28 Par. 4 of the German Data Protection Act
Italy
Italy’s anti-spam laws are very strict. You can even be imprisoned for sending spam. If you’re sending to Italian recipients, follow these guidelines as well.
Personal Data Protection Code (legislative decree no. 196/2003)
The Code transposed EC Directive 95/46 on the protection of personal data and EC Directive 2002/58 on privacy in electronic communications; it consolidated all Italian pre-existing laws and regulations in this sector.
DL 196/2003 Personal Data Protection Code • DL 675/1996 on privacy protection states, inter alia, that a company must have authorization from each user whose personal data (such as e-mail) they want to use. • DL 171/1998 (deriving from the European Community directive 97/66/CE) on telecommunications privacy protection: this put outlaws all automatic systems to call a user and says that all the expenses of an advertising must be paid by the company and not the user (faxes and e-mails are instead paid also by the user).
DL 185/1999 (deriving from the European Community directive 97/7/CE) on customer protection with respect to long-distance contracts: this obliges companies to seek the permission of the user for virtual or telephone sales.
Netherlands
Dutch law requires very explicit permission and heavily protects data and privacy.
New Zealand
The Unsolicited Electronic Messages Act 2007. The Department of Internal Affairs provides detailed guidelines on the anti-spam laws.
Sweden
Swedish Marketing Act (Swedish Code of Statutes, SFS 1995:450).
Personal Data Act (Swedish Code of Statutes, SFS 1998:204), in so far as spam activities involve processing of personal data.
Last revised 10/21/19.